Fidelity Lumber Co. v. Bean

• Decision Date: 09 May 1918
• Docket Number: (No. 370.)
• Parties: FIDELITY LUMBER CO. v. BEAN.
• Court: Texas Court of Appeals

203 S.W. 782

FIDELITY LUMBER CO. v. BEAN.

(No. 370.)

Court of Civil Appeals of Texas. Beaumont.

May 9, 1918.

Appeal from Tyler County Court; W. A. Johnson, Judge.

Suit in justice court by Mack Bean against the Fidelity Lumber Company. There was judgment for plaintiff, and from decision rendered by county court on appeal, defendant appeals. Affirmed.

Thomas & Wheat, of Woodville, for appellant. J. A. Mooney, of Woodville, for appellee.

BROOKE, J.

This suit was brought by appellee, Mack Bean, in the justice's court, precinct No. 1, Tyler county, against appellant, Fidelity Lumber Company, for $125, the alleged value of one mare killed by the appellant's log train in Tyler county on or about August 10, 1916; said mare being the property of appellee. A judgment for $100 and costs was rendered by the justice's court in favor of appellee, from which judgment an appeal was taken to the county court of Tyler county, and duty perfected. The cause was tried on September 18, 1917, before the county court, without a jury, and resulted in a judgment for appellee in the sum of $125 and costs.

The issues made by the pleadings in the justice's court were as follows:

"The value of one mare killed by the defendant's log train in Tyler county, Tex., on or about the 10th of August, 1916, and same being plaintiff's property and of the value of $125."

An additional oral plea noted on the justice's docket was made as follows:

"That defendant operates a railroad in Tyler county, Tex., and was operating said train on the date of the alleged injury of plaintiff's horse, to wit, August 10, 1916; that said railroad was not fenced at the place, and that said defendant with its train consisting of an engine and logs killed bay mare, same being the property of plaintiffs and of the value of $125, and defendant refuses to pay same or any part thereof."

In the county court appellee pleaded orally that he was the owner of one bay mare of the value of $125, and that on or about August 16, 1916, said mare was killed by the negligence of defendant. In the county court appellant filed its written motion to strike out the plaintiff's oral pleadings in said court, which alleged a new cause of action, and because the plea or averment that defendant negligently killed his horse was insufficient and should state at least general negligence in some particular, and because oral pleadings cannot be made on appeal in the county court. Said written motion to strike out said oral pleadings was overruled. The case is now before this court for review.

The first assignment of error seems to have grouped the second and fifth assignments, and the same will be considered together, as follows:

(a) "The court erred to the prejudice of defendant in overruling its motion to strike out plaintiff's oral pleadings in the county court to the effect that his horse was killed by the negligence of defendant, because such plea of negligence is made for the first time in county court on appeal, and because it does not state in what particular the defendant was negligent."

(b) "The court erred in overruling defendant's motion to strike out the plaintiff's oral plea in the county court to the effect that his horse was killed by the negligence of defendant, because such plea could not be made for the first time on appeal in the county, and because it does not state in what particular the defendant was negligent, and because such plea cannot be made by oral pleadings in the county court, but should be by written pleadings in the form of amended pleadings, if made at all."

The proposition urged under this assignment is that the cause of action pleaded in county court on appeal must not only be similar, "but essentially identical"; that is, the cause so pleaded on appeal in county court must be such that the same evidence will support both of the pleadings, and the allegations must be subject to the same defense.

Article 2326, Vernon's Sayles' Civil Statutes 1914, provides that the pleadings in the justice's court shall be oral, except where otherwise specially provided, but a brief statement thereof may be noted on the docket. Construing the article, the decisions are to the effect that the fullness and particularity required in written pleadings are not necessary in the oral statements in the justice's court, and that even the form of an account will not prejudice the rights of the plaintiff as disclosed by the evidence, and it has further been held that a pleading in justice's court, though in writing, need not be more specific than if the case had been tried on oral statements of the cause of action; and the effect of this article is that no rule is prescribed except that the statement, which may be made by the parties, may be oral, and shall be entered on...